The Twelve Days of Gheorghemas - Day Four

On the fourth day of Gheorghemas big Gheorghe gave to me:
Four posts zman meant to write but never did
Three French Hens
Two in-state rivalries
And a dork with a split personal-ity

I saw a number of interesting (at least to me) bits in the news and thought about writing posts but didn't because I'm lazy. So for Gheorghemas I'm giving you the top four.

1. Strip clubs get sued a lot and they like to use Jessa Hinton's image

A number of noodie bars have been sued over the past few weeks for advertising their establishments using images of relatively famous women without their permission. And these aren't hole-in-the-wall places either. Sin City, New York Dolls, Flashdancers, and several other clubs that advertise on cabs in NYC and that may or may not have served me a beer or three over the past 40-odd years.

In a nutshell, the plaintiffs in all of these cases assert that the strip clubs grabbed nearly naked and/or suggestive photos of them off of the internet and used them on the clubs' websites and other advertisements to make it appear that the plaintiffs worked at these clubs. But they don't, haven't, and won't. Or so they assert. All of the complaints express outrage for presenting sexually suggestive photos of the plaintiffs, which is funny because the complaints always describe the plaintiffs' high-falutin' modeling careers which all involve sexually suggestive (and often outright explicit) magazines. But of course, just because a woman chooses to pose in Playboy doesn't mean she also dances naked. And just because she dances go-go don't make her a ho no.



There's some overlap among the women involved: Joanna Krupa, Sara Underwood, Jessica Burciaga and several others pop up across multiple complaints. I guess this is to be expected. However, one woman appears on all of the complaints: Jessa Hinton. I never heard of her before this but I think I get why she's so popular.

For the record, this is the least suggestive, most clothed photo of Ms. Hinton that I could find using Google image search. It appears that she doesn't own any real clothing, opting instead to wear world-class underboob shirts, bikinis made of pizza and body paint ... and that's when she wants to wear something.

Perhaps the most interesting complaint was brought against the Miami Velvet Club, which, according to its NSFW website, is America's #1 swingers club. The complaint is 681 pages, needlessly long but remarkably thorough. If you want to learn a lot about glamour models and swingers clubs I'll send it to you.

2. Pepperidge Farm sued Trader Joe's for infringing their Milano cookie trademark

Pepperidge Farm takes their cookies seriously. So seriously that they sued Trader Joe's, asserting that the shape and packaging of TJ's Crispy Cookies constitute "infringement and dilution of the famous and unique MILANO® cookie configuration trademark (as defined below), which Pepperidge Farm or its predecessors in interest have used for decades in connection with cookie and snack products."

It gets more heated. P-Farms asserts that "[d]espite being well aware of the famous MILANO® cookie configuration trademark, and the enormous goodwill symbolized thereby and associated therewith, Defendant recently began selling, in the packaged retail space, a cookie product designed to trade on the MILANO® cookie’s goodwill and reputation."

Further, "Pepperidge Farm’s trademark rights associated with MILANO® brand cookies have gained particular fame because unlike generic snack foods or cookies, the MILANO® cookies are in and of themselves identifiable due to the MILANO® CONFIGURATION, and serve as an indicator of source .... For example, the MILANO® cookies are instantly recognizable and due to their popularity, have appeared in pop culture and TV shows like Frasier, Will and Grace, Seinfeld, and Two and-a Half Men."

I'm not sure what's funnier, the complaint's sturm and drang or the trademark registration itself:

Yep, that's a cookie certificate. Anyway, I think it's pretty clear that T-Joe's cookies aren't the same as P-Farm's cookies--everybody knows that T-Joe's sells fugazi stuff designed to look like other stuff, like Joe's Os, and no one is going to be confused to the point that they think they're buying Milanos. Here's a comparison so you can be the judge.

Just to be safe I'm making a run to Joe's to stock up on bootleg Milanos.

3. Jack Urbont and Sony continue to duke it out

Jack Urbont's case against Sony Music and Ghostface Killah slogs on. Briefing continues, rehashing all of the stuff I've rehashed here before. It isn't very interesting.

I expect Sony to prevail. Hopefully GFK doesn't go after Mr. Urbont like he goes after Action Bronson in this GFK vs. Bronsolino video game (which you can play here).



4. Daniel Snyder really is tone deaf

Daniel Snyder's case against a group of Native Americans regarding the R**skins trademark cancellation continues to slog on. I won't bore you with all of the legal minutiae asserted in his appeal brief, but there are a few illogical leaps worth mentioning.

Mr. Snyder presents a ton of registered trademarks "that the Team believes are racist, or misogynistic, vulgar, or otherwise offensive. By way of example only, the following marks are registered today: TAKE YO PANTIES OFF clothing; DANGEROUS NEGRO shirts; SLUTSSEEKER dating services; DAGO SWAGG clothing; DUMB BLONDE beer; TWATTY GIRL cartoons; BAKED BY A NEGRO bakery goods; BIG TITTY BLEND coffee; RETARDIPEDIA website; MIDGET-MAN condoms and inflatable sex dolls; and JIZZ underwear. These are not isolated instances. The government routinely registers pornographers’ marks: TEENSDOPORN.COM, MILFSDOPORN.COM, THUG PORN, GHETTO BOOTY, and BOUND GANGBANGS are but a few."

He also lists out these marks:

SHANK THE B!T@H board game; CRACKA AZZ SKATEBOARDS; ANAL FANTASY COLLECTION, KLITORIS, and OMAZING SEX TOYS sex toys; HOT OCTOPUSS anti-premature ejaculation creams; OL GEEZER wines; EDIBLE CROTCHLESS GUMMY PANTIES lingerie; WTF WORK? online forum; MILF WEED bags; GRINGO STYLE SALSA; MAKE YOUR OWN DILDO; GRINGO BBQ; CONTEMPORARY NEGRO, F’D UP, WHITE TRASH REBEL, I LOVE VAGINA, WHITE GIRL WITH A BOOTY, PARTY WITH SLUTS, CRIPPLED OLD BIKER BASTARDS, DICK BALLS, and REDNECK ARMY apparel; OH! MY NAPPY HAIR shampoos; REFORMED WHORES and WHORES FROM HELL musical bands; LAUGHING MY VAGINA OFF entertainment; NAPPY ROOTS records; BOOTY CALL sex aids; BOYS ARE STUPID, THROW ROCKS AT THEM wallets; and DUMB BLONDE hair products.

Based on these and other exemplary marks he deems offensive, Mr. Snyder concludes that he should be allowed to register the R**skins mark even if it is offensive.

This doesn't make sense for a few reasons. First, the test is whether the mark is offensive to the relevant group who would be offended, no to Mr. Snyder or "the Team." Just because "DUMB BLONDE" offends his delicate sensibilities (so much that he listed it twice in his brief) doesn't mean it offends people (or blondes) in general. Further, how is it possible that Mr. Snyder is offended by "DUMB BLONDES" but not "R**SKINS"?

Second, it's not clear that some of these marks are offensive at all. For example, "Gringo BBQ" probably doesn't offend many white people. Similarly, the word "Negro" isn't offensive in the context of "United Negro College Fund."

Third, and perhaps most importantly, just because the USPTO registered all of these marks doesn't mean anything. The PTO screws up all the time. US patents are invalidated every day by Federal courts and the PTO itself. It would not surprise me if there are thousands or tens of thousands of invalid unexpired patents out there. No one ever says "hey judge, my patent is valid because there are many other patents out there and they're valid too." Sure, patents are presumed valid, but that is never anyone's entire validity argument.

Finally, comparing yourself to "racist[s], or misogynist[s] ... [and] pornographers" doesn't exactly present your cause in a positive light. In fact, it makes your cause look racist. Which, in this case, it is.

Fratagonia is not, apparently, the frattiest mountain range in South America

Fratagonia is a website that sells "On-line retail store services featuring new and used clothing, clothing accessories, drinkware, home decor, and decorative art; Retail store services featuring new and used clothing, clothing accessories, drinkware, home decor, and decorative art; Second hand dealerships featuring new and used clothing, clothing accessories, drinkware, home decor, and decorative art." I did not make up this description of their services. Instead, I copied it from their trademark registration documentation as quoted in the complaint Patagonia filed against them for trademark infringement, trademark dilution, and unfair competition.

Fratagonia has at least two logos:

Pretty fratty. But clearly ripoffs of the Patagonia trademark--even the fonts are the same:

It seems perfectly acceptable for Patagonia to sue Fratagonia, but I feel bad for the fratguy after digging just a stitch deeper into the facts. The Fratagonia mark is registered to a person who I won't name, but based on a search of the Googles he appears to be a 25-year-old entry-level finance type living in a shitty apartment in lower Manhattan. I know it's shitty because based on the trademark registration Fratagonia appears to operate out of it and Google streetview doesn't present it in a kind light. I imagine a dingy one room fifth-floor walkup teeming with Smathers & Branson needlepoint belts and Harding-Lane hats.

If you're thinking of helping him out by buying a tshirt, don't. They're seeking "from Fratagonia its damages and lost profits, and Fratagonia’s profits, in an amount to be proven at trial." And they want that amount trebled! So every dollar you give him could cost him three. Kudos to the kid for incorporating as an LLC though. Perhaps as a result he'll emerge from this litigation personally unscathed. He better hope that Patagonia doesn't try to pierce the corporate veil.

In light of the foregoing I'm surprised Patagonia didn't send a cease and desist letter. And if they did I'm surprised our enterprising young fratistician didn't do the math and shutter the Fratagonia website. I guess he doesn't know about how these things pan out for the little guy.

Part II: Blood is Thicker Than a Solution of Water, Urea, and Creatinine, Alternatively Titled "I Realize That I Have Something in Common With Daniel Snyder"

In Part I of this piece I told the story of the time my son kicked my dick so hard I pissed blood. I concluded with the realization that "Just like Dan Snyder, I piss burgundy and gold!" This realization coupled with some comments last week about the use of the word "Redskins" got me thinking about some legal wrinkles in the analysis.

Here's some quick background that will make my upcoming rant more understandable. You can register a trademark with the federal government if you use that mark in commerce in connection with goods or services. In particular, you register the mark with the United States Patent and Trademark Office (USPTO or PTO). You submit an application and an examiner decides whether to register the mark. You have a back-and-forth dialog with the examiner but if he won't give you the mark you can appeal his refusal to the Trademark Trial and Appeal Board (TTAB). If you don't like the TTAB's decision you can appeal that to the US Court of Appeals for the Federal Circuit (CAFC). After that you're shit out of luck (SOL), unless the Supreme Court of the United States (SCOTUS) will hear the case but that's highly unlikely. If you don't like someone else's trademark you can challenge it in the TTAB, and the owner of the mark has the option to remove the matter to the US District Court for the District of Columbia (DDC). You an appeal the DDC's decision to the Court of Appeals for the District of Columbia Circuit (CADC), and again you're probably SOL if you don't like their conclusion.

In 1992 a group of seven Native Americans petitioned the TTAB to cancel the REDSKINS trademark because they found it disparaging. There were many proceedings before the TTAB, DDC, and the CADC. In the end six of the Native American petitioners' claims were dismissed based on a laches defense -- the mark was registered in 1967 and they didn't sue until 1992. Simply put, they sat on their claim for too long. (I can't believe I'm writing about laches here again.) The seventh petitioner was only a year old in 1967 so he couldn't have sued when the mark was first registered, but he turned 18 in 1984 so he waited 7 years and 9 months to file his petition. Through various intellectual convolutions, DDC decided that he wasn't reasonably diligent in bringing his claim and CADC affirmed. Here's the CADC opinion. There may have been more opinions after this one but the gist is that these folks waited too long to complain that they were offended by the use of the name REDSKINS.

The obvious solution to this problem is to find a bunch of Native American kids with the same birth date and file a petition on their behalf on the day they turn 18. This is why people hate lawyers.

In fact I think someone has already started to put such a group of petitioners together. But what happens next? Well, the TTAB or DDC have to decide if the mark is "immoral, deceptive, or scandalous" under Section 2 of the Lanham Act. What does that mean? That means the petitioner must demonstrate that mark is shocking to sense of truth, decency, or propriety; disgraceful; offensive; disreputable; giving offense to conscience or moral feelings; or calling out for condemnation.

How the hell do you do that? Sometimes it's easy, like when you have a smutty mark. CAFC recently affirmed the TTAB's refusal of "COCK SUCKER" which was intended to be used on chocolate lollipops shaped like roosters. Apparently the target audience was students at the University of South Carolina and Jackson State University because they both have gamecock mascots. Seriously, read the opinion.

"COCK SUCKER" is clearly vulgar and I don't know why CAFC needed 13 pages to reach that conclusion but I'm not a judge so what do I know. Similarly, the following smutty marks have been refused by CAFC and/or TTAB:

1-800-JACK-OFF
JACK-OFF
A photo of a man and a woman with the man's penis exposed, used to promote swinging
CUMFIESTA
CUMGIRLS
PUSSY
SEX ROD (opposed by the Red Sox in part because it was in the same font as their trademark)
YOU CUM LIKE A GIRL
DE PUTA MADRE
BULLSHIT
W.B. WIFE BEATER
TWATTY GIRL
GRANDMA SCHITTHED'S OUTHOUSE BROWN
GRANDPA SCHITTHED'S INKY STINKY PALE ALE
SCHITTHED'S
DICK HEAD'S

But they allowed "BIG PECKER BRAND" because "use of the term 'pecker' meaning penis is rapidly becoming archaic" and just isn't offensive anymore. So start throwing that term around the office and if anyone reports you to HR tell them to take it up with the TTAB.

In the context of disparaging marks, the TTAB applies the following test:

(1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
(2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.

How does this play out in practice? Oddly. For example, in In re Squaw Valley Dev. Co., the TTAB concluded that the marks "SQUAW" and "SQUAW ONE" were offensive when used to sell clothing or retail store services in the field of sporting goods or equipment. They reached this conclusion after reviewing a plethora of dictionaries, articles, state laws, and other sources showing that "SQUAW" is an offensive term for a Native American woman. However, they decided that "SQUAW" was not offensive when used to sell skis, ski poles, ski bindings, and other ski equipment because Squaw Valley is a ski resort and it's often referred to simply as "Squaw." Again, people hate lawyers for a reason.

Similarly, the mark "HEEB" was refused (by a panel of judges named Seeherman, Holtzman, and Kuhlke) as disparaging to Jews. But by contrast, "MAFIA BRAND" and "JUNIOR M.A.F.I.A." (Biggie!) were allowed because "MAFIA" isn't disparaging to Italians ... according to two panels of judges named Chapman, Hairston, and Bottorff; and Simms, Walters, and McLeod, respectively.

Sometimes reading cases is fun: "BLACK TAIL" was used to sell noodie magazines and it was allowed because:

As the Court said in Mavety, and as the present record shows, the word “tail” can have a variety of meanings as applied to an adult entertainment magazine. In particular, the dictionary definitions show that “tail” can mean “buttocks,” and there is no indication from the dictionary definitions that such a meaning would be considered vulgar.

Having reviewed the issue of BLACK TAIL magazine which is of record herein, we find it difficult to believe that anyone, seeing the mark used for such a publication, would consider the phrase to refer simply to buttocks. The photographs in the publication are photographs of nude and scantily-clad African-American women, and while many of the photographs feature the rear ends of these women, a large number feature their breasts and genitalia, often showing the women using their fingers to further expose themselves. However, our principal reviewing Court stated quite clearly in Mavety that, in view of the existence of an alternate, non-vulgar definition of “tail,” the Board, without more, erred in concluding that in the context of an adult entertainment magazine, a substantial composite of the general public would necessarily attach to the mark BLACK TAIL the vulgar meaning of “tail” as a female sexual partner, rather than the admittedly non-vulgar meaning of “tail” as rear end. 31 USPQ2d 16 1928. Given that opposers have not provided any further evidence as to the meaning of “tail” than was present before the Court during the appeal, we cannot conclude that it is the vulgar meaning that the relevant public would attach to the mark, nor can the Board substitute its own judgment for that of the perspective of the relevant public.

Can you imagine reviewing back issues of Black Tail magazine in your office with a valid work-related reason?!? I need to get a job on the TTAB! Out of respect for the women of G:TB, this is the only Black Tail photo I will post here.

So what does all this mean for "REDSKINS"? My hunch is that it will be canceled. In order for a mark to be offensive "a substantial composite of the referenced group" must feel disparaged. Here are some data from the TTAB proceeding involving the REDSKINS mark:

As we already saw, "SQUAW" was not allowed in some circumstances (i.e., when it wasn't clearly tied to Squaw Valley) because it was found to be offensive, but less than half of Native Americans (47.2%) surveyed felt offended by it. So you don't need to demonstrate a consensus to establish that a mark is disparaging. In fact, the judges who denied the HEEB mark noted that "While case law does not provide a fixed number or percentage, it is well established that a 'substantial composite' is not necessarily a majority." Given that 36.6% of Native Americans surveyed (i.e., more than 1 in 3) and 46.2% of the general population are offended by "REDSKINS," I can easily see the mark being canceled (once the stupid laches shenanigans are avoided). The "HEEB" opinion suggests that if a sub-population within the group in question is offended, then the "substantial composite" requirement is met, and a smart lawyer should be able to parcel out a particular sub-population of Native Americans to win cancelation.

To that point, Rick Reilly clearly isn't a trademark lawyer. There was an LA-based rap group called N.W.A. that was popular in the late 80's/early 90's. You may have heard of them. According to their Wikipedia page, N.W.A. stands for "N***az Wit Attitudes." N.W.A. registered the "N.W.A." mark with the USPTO. They did not, however, register "N***AZ WIT ATTITUDES". Clearly they aren't offended by the word "n***az," and neither are countless other emcees who throw the word around, so in Rick Reilly's world what's the problem? In fact, many people have tried to register marks containing this word but none have been allowed. And obviously the NAACP would win if they petitioned the TTAB to cancel a mark containing this word. So just because some Native Americans don't mind calling themselves "REDSKINS" doesn't mean that the term isn't offensive to other Native Americans. Or perhaps to put too fine a point on it, what does Rick Reilly think would happen if they changed the team name to the Washington Niggaz? Chris Rock pondered this previously but I can't find the video.

Of course, even if the federal registration of the REDSKINS mark gets canceled, Snyder et al. can continue to use it and can probably even enforce infringement of the mark in state court. But can you imagine how shitty Snyder would look if a panel of federal appellate judges decide that "REDSKINS" is too racist a word to receive federal protection but he continues to use it nonetheless? No one can be that tone deaf.

I joked yesterday that they should become the Washington Hematuria but I did a google image search and found nothing that would look good on a helmet. So here is a handful of suggestions.

WASHINGTON WASPS - tons of them in Northern Virginia and they'd love to rock "WASP" hats with plaid shorts and Topsiders. They can keep the colors too.

WASHINGTON VICTORS - hail to the victors, hail victory. The song writes itself. And it needs to be rewritten.

WASHINGTON RATTLESNAKES - they can keep the "R" trademark and the colors, and this particular snake is found in Maryland:

WASHINGTON GIBBSES - how fucking dope would this look on a helmet?

WASHINGTON RHINOS - tough as nails, they keep the "R", and no one else uses it. Sure, there are no rhinos in DC but how many Native Americans do you see in the District?

My work here is done. Next week I'll solve another major American crisis that arises in G:TB's comments.

Sream and Roor Will Smoke You

Martin Birzle (as in, fo' shirzle my Birzle) is an award-winning designer and manufacturer of smokers' products. Mr. Birzle owns Roor International BV, which is headquartered in Germany, and he sells his high-quality borosilicate hand-blown jointed-glass water pipes under the Roor trademark.

The Roor mark is the subject of three registrations with the US Patent and Trademark Office. To put it more plainly, Birzle sells fancy glass bongs--so fancy that they have trademarks associated with them. Don't laugh! Roor bongs start at $300 each. Roor sales in the United states alone have been in excess of $5,000,000 for the last three years. That's a lot of green.

I know all of this because Roor and its licensed US distributor, Sream, Inc., sued Arzumanara Corporation in the US District Court for the Southern District of Florida for trademark infringement, asserting that Arzumanara sells knock-off Roor bongs. Fugazis if you will.

It turns out that Arzumanara does business as "Food Zone 619" which, according to Yelp, appears to be a bodega in Homestead, FL (about 15-20 miles outside of Miami). Remarkably, this isn't the first time Sream and Roor took legal action to enforce the Roor marks. It appears that Sream filed 313 complaints (313!?!) in the past two to three years, mostly against what appear to be mom-and-pop food stores or gas stations that sell cheap glass bongs under the counter.

Their complaints are filed almost exclusively in C.D. Cal. (which covers LA), S.D. Fla. (Miami), S.D.N.Y. (Manhattan), E.D.N.Y. (Brooklyn Queens Staten and LI), and E.D. La. (New Orleans). They seem to focus on places where pot is plentiful.

None of this makes a ton of sense to me. How do you walk into federal court and assert trademark protection over a product used to commit a federal crime?

via GIPHY

Apparently they don't walk into court too often, instead they settle. And that's likely a great way to make money. Even if they only get $10,000 per settlement, that's over $3 million for 313 cases. Once their attorney takes his contingent fee cut they're left with at least $2 million.

So if you're selling bootleg Roor bongs in the back of your bodega, stop now! Or else Birzle will put a hurtin' on you! I'm looking at you Mark.

Lawyer Up

“This is asinine. Zazzle gave me instructions on how to file a counter-notice, and I plan to. Not because I really care about the dumb design, but because this is ridiculous asshattery that shouldn’t be allowed to continue.” -- Dave Lartigue, t-shirt designer and wordsmith

Like the salmon flocking to Capistrano, the lure of the phrase 'ridiculous asshattery' is one we find impossible to resist. So when wired.com used it as a tag in this story on a trademark infringement claim, tractor beam - sucked us right in.

U.S. trademark registration 4,473,631 gives Paul Ingrisano, dba Pi Productions Corp, a New York corporation, the rights to the symbol for pi followed by a period. Ingrisano uses the mark on t-shirts. So far, so good.

Our story took a turn, though, when Ingrisano found that Zazzle, an online print-on-demand retail store, was selling various items with pi imprinted upon them. Through his attorney, Ronald Millet, he filed a cease and desist order (or, more accurately, a CEASE AND DESIST order - I think he really, really meant it).

  Zazzle Pi Trademark Letter

Clearly intimidated by the all-caps demand, Zazzle removed all items with pi from its online store, which prompted Lartigue's indignation. After several days of backlash, the company did begin once again allowing its users to sell pi-based articles.

No word yet on which words Millet will capitalize in his next complaint to Zazzle.

Alright Alright Alright!!

At the start of my sophomore year at William & Mary, FOG:TB Ian said "You have to see this movie" so we went to the theater on DOG Street and what I saw changed my life.  We brought other people to see it and they all loved it too.  Since then I've rewatched it more than any other film and not always by choice because it seemingly played nonstop at Unit M.  Dazed and Confused is a masterpiece, one amazing scene runs into another.  Like this:

It features a bunch of people who went on to become famous like Ben Affleck, Milla Jovovich and Parker Posey, and it's the first movie appearance for a few actors including Joey Lauren Adams ... and Matthew McConaughey.  Since then, McConaughey had an incredibly impressive career but his first line, "Alright alright alright!" sticks with him today.

So much so that when people impersonate McConaughey they almost always say "Alright alright alright."

You could say "Alright alright alright" is his trademark.  Because it is, legally.  He registered it.

I've written a bunch of trademark posts but there is no trademarks label.  Until today!

Trademarks are a form of intellectual property that protects a brand--they indicate the source of the goods or services to which they are attached.  They are typically words, like Coca-Cola, or logos, like the Nike swoosh.  But they can also be smells (like the smell of Play-Doh) or sounds (like the NBC chimes).  Here's a link to many other sound marks.  Neat, right?!

McConaughey registered ALRIGHT ALRIGHT ALRIGHT as both a word mark and a sound mark.  As with all trademarks, these registrations are limited to specific goods and services.  The word mark is limited to clothing, but more interestingly the sound mark is limited to "Downloadable audio-visual media content, namely, downloadable audio and video recordings in the field of self-help, human growth and spirituality; Downloadable audio-visual media content, namely, downloadable audio and video recordings in the field of entertainment featuring television series, comedies, and dramas."  Apparently he's trying to prevent people from using AI to simulate and misappropriate his catchphrase.  He also registered two videos of him saying the phrase.

These registrations are held by his non-profit company J.K. Livin Brands, Inc. which holds 49 registered trademarks and 6 pending applications.  The registered marks include another video "of The actor, Matthew McConaughey, standing outdoors on a porch speaking and gesturing," which I can't get to work but they include a JPEG.  Parenthetically, the pending marks include "THE GREATEST INVITATION IN THE WORLD. THE SOCCER BALL." and "PECKER POP."  

This is an interesting approach to protecting a famous person's likeness beyond right of publicity as it gives a federal statutory hook on which to hang a complaint.  But don't worry, we're still free to say "alright alright alright" so long as we aren't saying it to sell human growth and spirituality services (for the same reason I can make my kids to their chores by saying "Just do it!" without fear of Nike suing me).  So just keep livin' man, L-I-V-I-N.

Can we at least go back to "Senators" then?

In what should come as a surprise to no one, MLB and the Washington Nationals have run into yet another problem with their DC franchise. Is it the lack of an owner? Nah, they'll hammer that out by 2010. Is it the ongoing stadium drama, starring Councilman for Life Marion "Crack" Barry (seen at the right "campaigning")? Nope, they'll just play on the Mall if they have to. The newest dilemma for the Nats?

They can't be the Nationals anymore. OK, correction, they can be the Nationals, but they just can't sell any merchandise with that name on it. As those Guinness guys say, "Brilliant". Once again MLB has pressed the big red button.

A Cincinnati company named Bygone Sports was granted a trademark last week on the name Washington Nationals. Hmmm, will that be a problem MLB? Bygone applied for the trademark in 2002, and it's not like MLB wasn't aware of this. MLB's executive VP John McHale Jr.'s response to this news:

"We believe we own the name and the rights."

OK, that's good. And why does he believe that? Because Bygone and MLB apparently had an oral agreement in place. Let me just get this straight - You are (finally) bringing a franchise back to DC, a process that could be termed arduous at best, and you couldn't manage to draft an actual document to secure the proposed name of the franchise? I mean, how mind-numbingly stupid are these people?

[Thanks to BenMaller.com for the heads up.]

Subway Declares: Cease and Desist!

I'll try to dumb it down after the last post . . . you may have heard that Subway is trying to copyright the term "footlong" in association with its twelve inch sandwiches. They recently sent a "cease and desist" letter to The Coney Island Drive Inn, a restaurant in Brooksville, Florida, that sells "footlong" hot dogs.

After explaining that Subway "has applied for the trademark FOOTLONG (TM) in association with sandwiches," the letter says:

You are hereby put on notice to cease and desist from using FOOTLONG (TM) association with sandwiches. You must immediately remove all references to FOOTLONG (TM) in association with sandwiches.

You can read the letter in its entirety and more on this case here.

What you may not have heard is that I, Mr. Truck, have also received a "cease and desist letter" from Subway. The odd thing about this letter is that Subway is threatening legal action if people (especially young nubile women) do not immediately stop calling me Mr. Footlong. In no way did I encourage this nick-name, and if anyone is calling me this, it is completely without my knowledge or premeditation. It is simply how God made me. Here is an excerpt of the letter:

Dear Mr. Truck:

You are hereby put on notice to cease and desist from allowing sexually attractive women to use the term MR. FOOTLONG (TM) in association with your turgid genitalia, tally-wacker, prong, et al. You must immediately dispel all such rumors and references to MR. FOOTLONG (TM) in association with this matter.

I do not want to be involved in a costly lawsuit, and I have heard there are some products available on the Internet that will remedy this situation. Perhaps then the ladies will change my nickname to Mr. Cubit.

Turn This Mutha Out

As I haven't been shy to disclose, my wife and I walked around the corner to see George Clinton and Parliament Funkadelic at a cool little music venue in our town. The Tally Ho Theatre's been around for a while in various incarnations, but at present, it's a 500-ish capacity joint with great acoustics and good beer. We usually get touring tribute bands, local talent, and the occasional one-hit wonder (Gin Blossoms have been here a couple of times), so it was a bit of an excellent surprise that the Mothership landed in Leesburg.

Brother Clinton is pushing 80, and his role is more that of conductor than full participant in much of what his band kicks out, but he led P-Funk through a nearly three-hour set of funk, rap, metal, blazing guitar from Blackbyrd McKnight, and more funk. 

I grabbed a couple of shitty videos, but I missed capturing McKnight's incendiary ten-minute solo work on Maggot Brain. You can check out a reasonable facsimile here:

Here are the few that I took, and no, I have no idea how to rotate the second one. Just tilt your heads. Coulda sworn I got video of Atomic Dog, too, but there's no proof of that. Clinton's the one wearing the white bathrobe, though he's done away with his trademark rainbow dreads. We got close enough to the stage by the end of the evening that my wife managed to snag beads tossed by the band on their way off the stage. Didn't ever think I'd get see P-Funk live, and I sure as heck didn't think it'd happen walking distance from my house. Pretty, pretty cool.

Don Ameche is not one of these amici but they are impressive nonetheless, Alternatively Titled “I Shot the Sheriff but I did not Shoot the Deputy”

Jamal Knox was sentenced to two years in prison for performing a rap song that was his take on N.W.A.'s "Fuck tha Police." The Pennsylvania Supreme Court upheld the sentence. Apparently he mentioned two specific police officers by name in the song, and they previously arrested him on drug charges. They alleged that the song was a "terroristic threat" and thus not protected by the First Amendment. Mr. Knox appealed this matter to the Supreme Court of the United States.

I know this because Erik Neilson, a professor at the University of Richmond, and Michael Render, one half of Run the Jewels (aka Killer Mike) filed an amicus brief in support of Mr. Knox. It opens with:

Additional amici include musical artists Chancelor Bennett (“Chance the Rapper”), Robert Rihmeek Williams (“Meek Mill”), Mario Mims (“Yo Gotti”), Joseph Antonio Cartagena (“Fat Joe”), Donnie Lewis (“Mad Skillz”), Shéyaa Bin Abraham Joseph (“21 Savage”), Jasiri Oronde Smith (“Jasiri X”), David Styles (“Styles P”), Simon Tam (member of The Slants and petitioner in Matal v. Tam, 137 S. Ct. 1744 (2017)), and Luther R. Campbell (member of 2 Live Crew and petitioner in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)), as well as music industry representatives Alan Light (former Editor-in-Chief, Vibe and Spin magazines), Dina LaPolt, Patrick Corcoran, Peter Lewit, and the entertainment company Roc Nation, LLC.

Further amici include scholars Michelle Alexander (Union Theological Seminary), Jody D. Armour (University of Southern California Gould School of Law), Paul Butler (Georgetown Law), Andrea L. Dennis (University of Georgia School of Law), Murray Forman (Northeastern University), Kyra Gaunt (University at Albany, SUNY), Lily E. Hirsch (California State University, Bakersfield), Robin D.G. Kelley (UCLA), Walter Kimbrough (Dillard University), Rev. Emmett G. Price, III, (Gordon-Conwell Theological Seminary), and Eithne Quinn (The University of Manchester).

For the record, Quinn Emanuel represents Killer Mike, Chance the Rapper, Meek Mill, Yo Gotti, Fat Joe, 21 Savage, Styles P, Luke Skyywalker, and the guy from The Slants who made it into one of my trademark-related comments. That shit cray!



It only gets better. You can read it here, and you should. But if you're too lazy here's the point: old white people, particularly racist old white people, don't understand that hiphop music is a lot of bragging and boasting (addressed here previously, see point four), fictional story telling, spinning of good old-fashioned yarns. It isn't real. Oddly, old white people seem to understand this in other forms of music. As Ice-T said, "I ain't never killed no cop .... If you believe I'm a cop killer, you believe David Bowie is an astronaut."

The Quinn Emanuel folks gave a pretty pointed take:

Additionally, the song is replete with lyrics that defy a literal interpretation. For instance, the lyrics refer to heavy artillery, enough to “shake the motherfuckin’ streets,” and mention all of the “soldiers” in the Ghetto Superstar Committee. Id. at 3a-4a. Neither Knox nor Beasley has served in the military or ever possessed street-shaking heavy artillery. (And neither has served on a committee of superstars, ghetto or otherwise.) The lyrics repeatedly refer to the rappers’ “riches,” id. at 3a, yet Knox lived in public housing and Beasley was represented by a court-appointed attorney. The song threatens to turn the Highland Park area of Pittsburgh into Jurassic Park, but neither rapper was found to have recreated dinosaurs. Id. at 4a.

And what about the lyric “you taking money away from Beaz and all my shit away from me / well your shift over at three / and I’m gonna fuck up where you sleep”? Id. This was singled out by the Pennsylvania Supreme Court as evidence that the rappers had actually learned when the officers’ shifts began and ended. But nothing in the record indicates that either officer’s shift ended at 3:00.

A quick scan of the lyrics reveals a much more likely reason for the reference to “three.” It rhymes.

Yes. Yes it does.

The brief also presents some pretty remarkable psychological studies involving country and hiphop music. I won't ruin it for you, read the brief because it's really well laid out. I will say, however, that shooting a man in Reno just to watch him die, or positing that you can't hang a man for shooting a woman who was trying to steal his horse, is some pretty gangster country (Gangstabilly?) shit. Country music is full of murder ballads! But no one wants to lock up Lyle Lovett.

For what it's worth, I'm stunned that 30 years after N.W.A. released "Fuck tha Police" with the line "when I'm finished, it's gonna be a bloodbath of cops dyin' in L.A." someone else is in jail for singing a different song with the same title and similar anti-police lyrics. I guess the moral of the story is to stay out of Pennsylvania. I'll keep you posted on how this develops.

via GIPHY

Chubby Checker Lays Wood on HP, Skins Palm

Ernest Evans, better known as Chubby Checker, is famous for his song "The Twist." If I were Mitt Romney I would bet $10,000 that everyone who ever reads this post knows "The Twist." It is impossible to avoid. It is played at weddings, bar mitzvahs, sweet 16s, office parties, and just about any other festive venue requiring safely inoffensive and universally dancable music. Here's a video to refresh your recollection:



"The Twist" is so pervasive that it's even featured on modern TV shows.



Note that they really aren't in PJ Clarke's. Also note that if I knew how to make GIFs I would make a GIF of 0:12-0:13 and thereby attract jillions of readers to G:TB. Alas, this is the best I can do.




"The Twist" is a remarkable song in other aspects. It reached #1 on the Billboard Magazine "Hot 100" singles chart in 1960 and stayed there for 18 weeks. It then reached #1 again in 1962! No other song in the history of songs has reclaimed the #1 spot on the Billboard Magazine "Hot 100" singles chart after falling off the charts. For at least this reason, Billboard named it the #1 all-time song.

Mr. Evans soon realized that "The Twist" was a license to print money, so he rattled off a bunch of identical sounding songs like "Let's Twist Again," "Slow Twist," "Twistin' USA," "Twist Around the Clock," and "Don't Knock the Twist." And, in an effort to protect his license to print money, Mr. Evans registered his stage name, Chubby Checker, as a trademark. Over the years, Mr. Evans expanded the use of his Chubby Checker mark beyond music to include jerky, hot dogs, steaks, lamb chops, pork chops, veal chops, hamburgers, chicken, popped or processed popcorn, candy, chocolate, and spring water. It's safe to say that Chubby Checker checks cheddar like a food inspector. I like this version better though.

I know all this and more because Mr. Evans recently sued Hewlett-Packard and Palm in the Southern District of Florida because they sell an app called "Chubby Checker" for use on Palm smartphones. This is surprising because it means (1) people still use Palm smartphones?! and (2) Chubby Checker knows someone who still uses a Palm smartphone?!

Also surprising: the Chubby Checker app allows the user to determine the size of a man's penis based on his shoe size. I don't see why you need an app for this, a simple wallet-sized conversion table should suffice, but it's product development foresight like this that got Palm where it is today so who am I to judge.

Mr. Evans is represented by Willie "The Giant Killer" Gary. He is a big-time lawyer. I know this because his website features a photo of him standing next to two late 1990s-era Bentleys. Seriously! Here's the photo!



Clearly he knows how to brief the heck out of a brief. Note that I didn't rename the photo, he saved it with the "williegarycar" title on his website. He has a video too. It uses "Eye of the Tiger" and "Getting Stronger." I hope he got permission to use those copyrighted works before he integrated them into his own work which he now displays to the world via the internet ...

I can understand why Mr. Evans would be bummed out by this app and the potential tarnishment it might bring to, say, his jerky or his hot dogs. I do not understand why he seeks damages of $500,000,000. Half. A. Billion. For the pecker app. That only 84 people have downloaded for $0.99 each. I'll let someone else figure out the math on that damages claim.

But I'm sure the math is sound! What seems unsound is potentially tarnishing your own mark by making a media circus out of something only 84 people know about. I mean, I eat Chubby Checker lamb chops like it's my job, but now that Chubby Checker made me aware of the Chubby Checker app I'm taking my business elsewhere. Maybe if someone politely asked HP to yank (pun!) the app from the internet, the world would never have known about checking chubbies. Aside from those 84 purchasers, of course. But what do I know.

So whether you're the Big Bopper or Little Richard, your chubby will have to be checked manually until this case is resolved. Please plan accordingly.

zBouillabaise Returns

I have a few random items floating around in my head that seem post-worthy but aren't substantial enough to warrant my typical overly-long treatment, so I'm doing another zbouillabaise post.

1. "Station Wagon" by Hector's Pets has been stuck in my head since I heard it on WFMU this weekend. I bought their lone album, "Pet-O-Feelia"--they're essentially a Ramones tribute band with a great fondness for doo-wop. The result is a lot of lo-fi garage rock with heavy guitar riffs and pulsating background vocals. It's fun.



2. Speaking of station wagons, there's some weird arbitrage going on at various Jaguar dealers. The XF Sportbrake is a 380 horsepower rocket sled masquerading as a station wagon. The MSRP starts at $71,000 and can balloon over $80,000 depending on how you option it up. There are a number of XF Sportbrakes available for at or under $60,000, including one for $53,000 in Houston and one for $58,000 in White Plains. I contacted the White Plains dealer about this one and two other Sportbrakes they had back in July. They still have two of the three on the lot. I'm not saying you should buy a Jaguar, but if you're like me and you like longroofs (looking at you Squeaky) and you're in the market for a new one, you can get a supercharged V6 Jaguar for the price of a turbocharged I4 Volvo V90. If not less--there is only one Caesium Blue XF Sportbrake for sale new in America right now (it's in Atlanta) and when I emailed the dealer for a price quote they responded within 4 minutes, then followed up 15 minutes later to remind me that the keys are out waiting for me to take a test drive. Simply put, no one wants these cars so you can find yourself some extremely good values and you might be able to gouge the dealers down even further. What this really means is that in two years the market for CPO Sportbrakes will be soft as hell. And who wouldn't want to get a good deal on this?

If only they made them in British Racing Green ...

3. Unrelated to station wagons, and perhaps the polar opposite of Hector's Pets, I've also been listing to Jungle's new album "For Ever." Unlike Hector's Pets' DIY sound, "For Ever" appears to have been Zaratsu polished to impossible smoothness. If I were a cynic I would say that the whole album is prefabricated for commercials advertising luxury goods and the closing credits of prestige TV. But I'm not so instead I'll say it sounds like a cross between electronica and Yacht Rock with some Lovage thrown in for good measure.



Maybe some Gnarls Barkley too.



4. You know those "Little Trees" air fresheners that you hang from the rear view mirror so your car don't smell? The company that makes those trees sued Bob Ross's estate for trademark infringement because they sell "Happy Trees" and "Happy Little Trees" air fresheners that allegedly look confusingly similar to the "Little Trees" air fresheners. I love Bob Ross as much as the next guy (well maybe not as much as Teedge) and I want to take his side but this is pretty egregious.

5. My beloved Buffalo Bills are on pace to score 184 points and to give up 624 points. That's a -440 point differential. Only seven teams have scored less than 184 points in 16 games. Only two teams have ever allowed more than 500 points (the 2008 Lions with 517 and the 1981 Colts with 533). So the Bills might be historically bad on both sides of the ball, and they're currently on pace to be the worst defense ever by 91 points. Since the merger, no team has had a point differential worse than -287 (the 1976 Buccaneers). A -440 point differential would be unfathomably bad. But we might have to fathom it--here's the rest of Buffalo's schedule: @MIN, @GB, TEN, @HOU, @IND, NE, CHI, @NYJ, BYE, JAX, @MIA, NYJ, DET, @NE, MIA. Not a lot of gimmes on that slate.

6. What part of the Constitutiom says that the President can’t appoint a Supreme Court Justice during an election year, but he or she can make such an appointment while being an unindicted co-conspirator for a federal crime?

The Twelve Days of Gheorghemas: Day 6

On the third day of Gheorghemas, Big Gheorghe gave to me:

Six splurges for Christmas

Five Good News Stories, courtesy of Shlara

Soon to be Four on the Floor

Three Habits Forming

Two beers with Marcus Aerelius, an OBX Dave Joint, and

Two(?) dudes bested by Kazansky

Yeah, I know I did something like this last year.  Whatever, I'm a material girl and I like to splurge.

1. A Wrensilva record console

My grandmother had this big piece of wooden furniture in her living room.  It had a radio and a turntable and cabinet to hold records.  The record player could even flip the record when it got to the end.  I think she threw it out when she sold her house.  At the time it seemed useless but right now I'd like to have it.

I'm not alone in this regard and Wrensilva has the answer.  They sell hand-made wooden record consoles in three different sizes with modern accoutrements like Sonos and Bluetooth.  They are expensive and obsolete but oddly I want one (but I'm too cheap and don't have a place to put it).  Seems like a nice splurge for you vinyl fans out there.

2. A mechanical watch

I've said it before and I'll say it again: everyone should have a mechanical watch.  I understand why you might love the functionality of your AppleWatch or your G-Shock, or the ease of your quartz timepiece, but interacting with a little machine that keeps track of time through gears and a spring is just a great experience.  You can find good ones at any price point too.  zfamily vacationed in Switzerland this summer and while the distaff members went to an art museum to see a Picasso/El Greco dual exhibit, zson and I staggered around Basel, eating street meat and ducking into stores.  We found a Patek Phillipe dealer but it was closed (probably for the best if you've met zson) but next to it was an Oris dealer.  They gave us free water, iced tea, chocolates and ice cream (zson ate deeply from the ice cream fridge) and let us look at their wares.  Their best offering, in my humble view, is the Divers Sixty-Five with the gray ombre dial and light blue markers.  Yes, it would be cooler if it was the Divers Sixty-Nine.  Yes, Tiffany blue dials are way too trendy right now.  Yes, $2,400 is a lot to spend on a watch.  Whatever, go try one on you'll see what I mean.

Maybe you already followed my advice and bought a mechanical watch.  Is it a GMT?  You need that extra hour hand to track a second time zone!  You're a ramblin' man!  Pimpin' all over the world!  Magnum had one for Pete's sake!  You need a Zodiac Super Sea Wolf "Pan Am" World Time GMT.  Then you can not only tell time in two places at once, you can say "I don't like that Pan Am coffee ..." when people ask about your watch.

3. Some pants from Duck Head

I know you remember Duck Head, purveyor of chinos in the south in the 1980s and 1990s.  They're back, or at least someone bought the trademark and stuck it on some chinos.  And they're good chinos!  Not so slim that you look like you're wearing your girlfriend's pants, and not so baggy that you look like a slob.  zwoman got me some shirts and a jacket too.  You won't be disappointed.

4. A Meater

Meater is not the name of an app for casual sex, although it should be.  It's a wifi and Bluetooth enabled leave-in meat thermometer.  You stick it in your meat, then set it to a temperature on your phone.  It will tell your phone when your meat is ready.

5. A Donald Trump NFT

I'm kidding when I say you should buy DJ Trump's NFT's.  I'm not kidding about their existence, I'm kidding about buying them because (1) they're sold out and (2) he's a piece of shit.  They exist!  I will find the time to make a full post out of this, but for now I'll just say that being Trump is a license to print money--he sold all 45,000 of his NFTs at $99 a pop.  That's almost $4.5 million.  For NFT's like this, featuring Trump chipping out of a sand trap with a salami in his pants: 

Or this one featuring Trump in a superhero outfit that flatters his ripped physique:

The NASCAR NFT is particularly interesting.  He's wearing #47 either because he expects to win in 2024, or he doesn't want to take Kyle Petty's number.  That his racing suit says "TEXAS," not "FLORIDA" or "NEW JERSEY," has me scratching my head.  Or maybe I'm just scratching my head at this whole thing.

6. A WCSaGD for Mr. KQ

Mr. KQ was obliquely mentioned in an ur-WCSaGD post entitled "WWzD/Automotive Alphabet Aerobics: T is for Triumph, Alternatively Titled: WWzD, Mr. KQ Edition."  I know he has an emotional connection to TR6s but I didn't get into that at all.  However, this post partially birthed WCSaGD.

You are an awesome person if you're getting Mr. KQ a TR6 for Gheorghemas.  But if you want my advice, I'd consider something else for him.

I met Mr. KQ at Gheorghefest.  His hi-fi setup is legendary.  He's a little bit older and a lot cooler than me, although the latter is a low bar.  And speaking of bars, Mr. KQ knows beers.  He knows smooth jams to rock the party and the ladies, so he needs something that can hold a party or an intimate encounter.  And cargo room is useful in his line of work.

You should get Mr. KQ a 1977 Dodge Tradesman B200 finished in yellow over a beige and brown interior, powered by a 360 cubic inch V8 paired with a three-speed automatic transmission, with a body kit with a rear spoiler and front lip spoiler, a sunroof, side pipes, oval-shaped windows, swivel captains chairs, button-tufted and quilted vinyl interior panels, a bed platform, LED lighting, a refrigerator, a flat-panel TV, an aftermarket sound system, a mirrored bar, and wine bottle storage.

Have I ever gotten a WCSaGD more right?  Check out this den of iniquity:

Even the transmission is perfect--three on the tree with a surfer knob.  That's what you should get Mr. KQ for Gheorghemas.

The Twelve Days of Gheorghemas 2019 Day 9: Nine (six, really) goats goatating

On the ninth day of Gheorghemas
Big Gheorghe gave to me:

Nine (six, really) goats goatating
Eight Autographs Showing How Sad My Childhood Was
Seven Books for Reading
Six Vinyl Discs
Five golden (Cream Yellow, really) cylinders for Squeaky
Four players playing
Three Nutty Squirrels
Two Chilean bangers (literally)
And a British lass slingin’ hot meat

Al Johnson's Swedish Restaurant & Butik is, as its name implies, a Swedish restaurant and boutique in Sister Bay, Wisconsin. More specifically, their website explains that "Al Johnson’s is an authentic Swedish family owned restaurant where you can find goats grazing the sod roof. It's quite a sight, and it's made this place one of the most famous restaurants in Door County."

That's right, the building features goats grazing on its roof. They even have a goatcam from May through October.

This feature is so remarkable and noteworthy that the owners applied for, and the United States Patent and Trademark Office granted, trade dress registration for the goats on the roof. Seriously. Here's their drawing of the mark:

I learned all of this because Todd C. Bank, allegedly a real person and an attorney, filed a petition to cancel Al Johson's trade dress registration. If you've been reading my G:TB stuff for any period of time, you probably predicted that. Also predictable: the court referred to the trade dress as the "Goats on the Roof Registration" throughout their opinion.

Much less predictable are Mr. Banks's arguments against the Goats on the Roof Registration. In particular, "Mr. Bank sought to cancel the Goats on the Roof Registration as functional, alleging that the trade dress 'is demeaning to' goats, which, in turn, 'is offensive to [Mr.] Bank and denigrates the value he [and others] place[] on the respect, dignity, and worth of animals.'"

Perhaps Mr. Bank was once a goat himself. He will always be a goat to me.

The Federal Circuit agreed with my latter sentiment and booted his case for lack of standing. In plain English, Mr. Bank had no "legitimate personal interest in the opposition."

Remarkably, this was the third time Mr. Bank opposed the Goats on the Roof Registration so the court awarded the restaurant its costs and attorney fees. Marls and the other barristers among our readership are likely saying "oh snap!" to themselves. Those of you who were smart enough to avoid law school will have to take my word for it when I say this is quite a benchslap.

If you want to show support for Al Johnson and his goats, I suggest you peruse the wonderful offerings in their butik. For example, they have these socks for Teedge:

Yes, those are goats wearing bowties.

They have these golf balls for Danimal:

And a shot glass for Whitney:

TR would love these playing cards with naked goats on them:

They even have child size goat tshirts for rob:

Who wouldn't like this goat hat (Scandanavian woman not included):

And just in time for Gheorghemas, this Änglaspel goat rotary candle holder would look perfect on everyone's mantle. Everyone should have a set of six to nine goats goatating in their living room.

Merry Gheorghemas everyone!